W.P.(C) 7946/2018, 8190/2018 & 9090/2020

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment reserved on: 01 September 2022

Judgment pronounced on: 22 September 2022

+

W.P.(C) 7946/2018, CM APPL. 30490/2018 (Stay)

BHARAT SERUMS AND VACCINES LIMITED ..... Petitioner

Through:

Mr. Rohan Shah, Advocate

versus

UNION OF INDIA AND ANR.

..... Respondents

Through:

Mr. Kirtiman Singh, CGSC and Ms.

Srirupa Nag, Advocate for UOI

AND

+

W.P.(C) 8190/2018, CM APPL. 31389/2018 (Stay)

BHARAT SERUMS AND VACCINES LIMITED ..... Petitioner

Through:

Mr. Rohan Shah, Advocate

versus

UNION OF INDIA AND ANR.

..... Respondents

Through:

Mr. Kirtiman Singh, CGSC and Ms.

Srirupa Nag, Advocate for UOI

AND

+

W.P.(C) 9090/2020, CM APPLs. 29370/2020, 9966/2022

BARD HEALTHCARE INDIA PRIVATE LIMITED THROUGH

ITS AUTHORIZED SIGNATORY NITIN SHARMA ..... Petitioner

Through:

Mr. Amit Sibal, Sr. Adv. with Ms.

Krishna Sarma, Mr. Jayakrishnan

K.R, Mr. Navnit Kumar and Ms.

Archita

Phookun, Advs.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003786

W.P.(C) 7946/2018, 8190/2018 & 9090/2020

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versus

UNION OF INDIA THROUGH SECRETARY MINISTRY OF

CHEMICALS AND FERTILIZERS & ORS.

..... Respondents

Through:

Mr. Anurag Ahluwalia, CGSC with

Mr. Danish Khan, Adv. for R-1 to 3.

CORAM:

HON'BLE MR. JUSTICE YASHWANT VARMA

J U D G M E N T

A.

INTRODUCTION

1.

These three writ petitions which revolve around Para 20 of the Drugs

(Price Control) Order, 2013¹ assail demand notices issued by the

respondent National Pharmaceutical Pricing Authority² holding the

petitioners guilty of overcharging and thus liable to deposit the overcharged

amount together with interest thereon. Bharat Serums the petitioner in

W.P.(C) 7946/2018 and 8190/2018 challenges the demand notices dated 26

June 2018 and 05 July 2018. The two demand notices relate to non-

scheduled formulations named Histoglob and U-Tryp. Bard the petitioner

in W.P.(C) 9090/2020 has challenged identical demand notices dated 07

November 2019 and 22 October 2020 in respect of 82 medical devices

which were produced and distributed by the said petitioner.

2.

Insofar as Bharat Serums is concerned, the respondents have held it

to be in violation of Para 20 with respect to the sale and distribution of

Histoglob for the period February 2014 to July 2018. The allegation of

1 2013 DPCO

2 NPPA

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003786

W.P.(C) 7946/2018, 8190/2018 & 9090/2020

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overcharging in respect of U-Tryp covers the period May 2015 to July

2018. Insofar as Bard is concerned, the respondents allege that medical

devices were overcharged during the period January 2015 to January 2018.

3.

In order to appreciate the issues which arise, it would, at the outset,

be apposite to advert to the provisions of Para 20 which reads thus: -

“20. Monitoring the prices of non-scheduled formulations.–(1) The

Government shall monitor the maximum retail prices (MRP) of all the

drugs, including the non-scheduled formulations and ensure that no

manufacturer increases the maximum retail price of a drug more than ten

per cent of maximum retail price during preceding twelve months and

where the increase is beyond ten per cent of maximum retail price, it

shall reduce the same to the level of ten per cent of maximum retail price

for next twelve months.

(2) The manufacturer shall be liable to deposit the overcharged amount

along with interest thereon from the date of increase in price in addition

to the penalty.‖

4.

Bharat Serums has been found to have overcharged and thus liable

for penal action under Para 20 in respect of the two non-scheduled

formulations noticed above. It asserts that in the period under scrutiny, it

had not overcharged prices and had merely rounded off the price of its drug.

Insofar as Bard is concerned, it h